Abstract

The death penalty is relevant to human rights because it affects a person's right to life and the right not to be subjected to cruel punishment. Almost all the main instruments on human rights guarantee these rights. In view of the importance of these rights, some international instruments have expressly called upon states to abolish capital punishment, or at least impose stringent conditions on its use. The Malawian Constitution and criminal laws still recognise the death penalty, including mandatory death penalty. This penalty can be imposed for such offences as murder, rape, treason, and armed robbery. It is argued that these offences will normally not merit the imposition of this penalty. Fortunately, the Constitutional Court has recently held in the Kafantayeni case that this penalty cannot be imposed compulsorily by the courts. Courts have discretion in sentencing and can impose this sentence only where the aggravating circumstances are extreme. Although Malawians are still hesitant not to abolish this penalty once and for all, this judgment, and the fact that no executions have taken place since 1992, make it unnecessary to still keep this punishment on the statute books.